The Internet: An Underestimated Discovery Tool
As lawyers, we are often compelled to "stick to the script" by following in the footsteps of those who came before us, even when that means adopting legalese and using rigid templates that likely made little sense to their drafters. The discovery process is not immune to this phenomenon, following a life cycle that seems almost etched in stone: a series of requests for production of documents, interrogatories or requests for admissions, culminating with depositions laden with questions based on the information and documents received in response. While these are all necessary steps, there is another frequently underutilized discovery tool that is available to all of us. When properly used, it can serve as a powerful supplement to traditional discovery methods.
August 18, 2017 at 05:57 PM
11 minute read
As lawyers, we are often compelled to “stick to the script” by following in the footsteps of those who came before us, even when that means adopting legalese and using rigid templates that likely made little sense to their drafters. The discovery process is not immune to this phenomenon, following a life cycle that seems almost etched in stone: a series of requests for production of documents, interrogatories or requests for admissions, culminating with depositions laden with questions based on the information and documents received in response. While these are all necessary steps, there is another frequently underutilized discovery tool that is available to all of us. When properly used, it can serve as a powerful supplement to traditional discovery methods.
|Finding a Wealth of Information Online
With some curiosity, time and very little skill, the internet can yield powerful information to aid in the development or defense of your case. As more and more entities archive their documents in online databases or ditch paper records altogether, the internet has cemented its reputation as a vast and readily accessible source of information for all industries. Likewise, a lot can be learned about an individual's personal and professional life with a quick search of the internet. In an era of digitalization, attorneys should no longer assume that an online search for even the most unlikely information would be an exercise in futility. Just as importantly, attorneys should not assume that the opposing party will produce, or even knows about, all the evidence needed to make their case. For those who rely too heavily on traditional discovery, that “smoking gun” document or critical fact living on a web page somewhere may never see the light of day.
Online discovery can prove useful at virtually any stage in the process for virtually all matter types, even for those who do not identify themselves as “tech savvy.” With today's internet search platforms, you don't necessarily have to know what you're looking for to find useful information. A simple Google search on something as basic as the name of the plaintiff or defendant in your case can lead to some impressive results. On numerous occasions, I have randomly scoured the internet for information to advance the interests of my clients catastrophically injured by defective medical devices or slighted by a corporation's fraudulent business practices—only to be surprised by the outcome. Just last year, I happened upon a safety guideline on the website of a federal agency that immensely helped several plaintiffs in a premises liability case. A few months ago, information in a deponent's own LinkedIn profile and filings archived on the Securities and Exchange Commission's website proved to be helpful impeachment evidence in a personal jurisdiction dispute. A couple weeks ago, an online complaint forum helped confirm the viability of a consumer fraud class action. More recently, a defendant medical device manufacturer's website yielded evidence about a retrofitting campaign that was much more detailed than the formal discovery responses received by the plaintiff.
|Uncovering New Clues
Formal discovery responses can also serve as a stepping stone in your quest for information by clueing you in on the existence of certain evidence than can be expanded upon with a thorough internet search. That information may then prompt you to serve additional document requests or interrogatories for documents or information outside of the public domain that you would not have otherwise known existed. For example, I was once prompted to serve additional discovery requests after the opposing party's initial responses revealed a business relationship with a third-party supplier whose website contained misinformation about a defective product.
Pharmaceutical products liability cases offer perhaps the best example of the utility of online discovery. The U.S. Food and Drug Administration's (FDA) website can be a critical resource for a plaintiff injured by a defective drug or medical device. With a few clicks of the keyboard, you can instantly access thousands of adverse event reports, 510(k) summaries and detailed recall notices. A drug or device manufacturer's own website can also help establish liability, as they may be compelled by the FDA or other regulatory agencies to provide critical recall information to their customers, and the internet is often the most efficient way to do so. Most medical journals now maintain full online archives which can provide a steady stream of literature supporting or refuting the safety and efficacy of a product.
|Skipping the Objections and Maximizing Depositions
Perhaps the greatest benefit of seeking information outside of the formal discovery process is the ability to streamline discovery by avoiding cumbersome objections on the basis of relevancy or privilege as well as related (and often dreaded) motion practice. Another major benefit is the satisfaction of presenting a deponent with a damaging document he or she—and if you're lucky even their own attorney—has never seen before. While there can be little doubt that opposing counsel prepared their witness to answer questions stemming from the documents produced in discovery, there are often documents online outside of this limited purview that were not addressed during pre-deposition preparations. Reliance on this outside information is thus likely to make that deposition, which is usually your sole opportunity to extract information from that witness, much more fruitful.
|Establishing Authenticity of Online Sources
If you do find trial-worthy documents on the internet, you should be prepared to address a challenge to their authenticity. For documents retrieved from a federal or state agency's website, that task should be relatively straightforward because they are likely to be “self-authenticating” under Federal Rule of Evidence 902. A more complex situation arises when you are seeking to introduce a damaging document without a clear author. In this situation, you may be able to establish authenticity under Federal Rule of Evidence 901 by eliciting the testimony of a witness with some foundational knowledge of the document, i.e., an individual who did not prepare the document but can testify to the fact that his or her organization did. Even if you are ultimately unsuccessful in getting the document admitted into evidence, you may still be able to question a witness on its contents.
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